Mobley-Weeks v. Gonzalez

Filing 23

ORDER granting 15 Motion to Dismiss because Mobley-Weeks failed to exhaust his administrative remedies before filing this action as required under 42 U.S.C. § 1997e(a). Because the dismissal is without regard to the merits of the action, this dismissal is without prejudice. The clerk must enter a judgment against Mobley-Weeks and close this case. Signed by Judge Steven D. Merryday on 8/28/2024. (RO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AARON IBRAHIM MOBLEY-WEEKS,
Plaintiff,
v.

CASE NO. 8:23-cv-2526-SDM-TGW

DEPUTY ANTONIO GONZALEZ,
Defendant.
/
ORDER
Mobley-Weeks files a civil rights complaint under 42 U.S.C. § 1983 alleging
the use of excessive force by Hillsborough County Detention Deputy Sheriff Antonio
Gonzalez, who moves (Doc. 15) to dismiss and argues (1) that Mobley-Weeks failed
to exhaust his administrative remedies, (2) that the complaint fails to state a claim
upon which relief can be granted, and (3) that Deputy Gonzalez is entitled to
qualified immunity. An earlier order (1) cautions Mobley-Weeks that the granting of
the motion to dismiss could result in both the dismissal of his claims against the
defendant and a final adjudication, (2) explains both that the district court must first
address the asserted failure to exhaust the jail’s grievance procedures and that, if
exhaustion is incomplete, this action is subject to dismissal without regard to the
merits of the claims, and (3) sets a deadline for Mobley-Weeks to oppose the motion
to dismiss. (Doc. 18) The deadline passed more than thirty days ago (1) with neither

an opposition to the motion to dismiss nor any contact from Mobley-Weeks and
(2) without the order’s return as undelivered.
In his complaint Mobley-Weeks alleges that, notwithstanding his taking a
“non-aggressive stance,” Deputy Gonzalez “put me in a chokehold stopping my
breathing, bent his knees to apply his full weight on my neck and jerked back and
forth attempting to break my neck.” (Doc. 1 at 4) Mobley-Weeks asserts that,
because of Deputy Gonzalez’s actions, he suffers “P.T.S.D., mental anguish,
depression, neck pain and spasms, back pain and spasms, bruised neck and inner
throat, loss of feeling in middle and ring fingers, chronic headaches, sleep
deprivation, neck and back cramps, [and] difficulty swallowing food.” (Doc. 1 at 5)
Mobley-Weeks represents that he “filed an informal grievance requesting a formal
grievance multiple times over the course of six months [but] never received a formal
grievance [and] ha[s] been blatantly ignored for months.” (Doc. 1 at 7)
Deputy Gonzalez moves (Doc. 15) to dismiss this action because MobleyWeeks failed to properly exhaust the jail’s grievance process. As Bryant v. Rich,
530 F.3d 1368, 1374 (11th Cir. 2008), instructs, a district court should first decide
the exhaustion issue and may consider evidence outside of the pleadings to resolve
a factual dispute regarding exhaustion. “We decide, however, that the district judge
did not err by acting as a factfinder in resolving this factual dispute. Instances exist
— such as those involving jurisdictional issues — when judges may resolve factual
questions. One such instance is when a judge must decide a motion to dismiss for

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failure to exhaust nonjudicial remedies.” Bryant, 530 F.3d at 1373–74 (footnotes
omitted).
The exhaustion of administrative remedies is required before a prisoner
“brings” a Section 1983 action. “No action shall be brought with respect to prison
conditions . . . by a prisoner confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). A prisoner must “properly exhaust” the administrative remedies.
“Proper exhaustion demands compliance with an agency’s deadlines and other
critical procedural rules because no adjudicative system can function effectively
without imposing some orderly structure on the course of its proceedings.” Woodford
v. Ngo, 548 U.S. 81, 90–91 (2006). The failure to “properly exhaust” the
administrative remedies will bar a prisoner from pursuing a claim in federal court.
“[S]aying that a party may not sue in federal court until the party first pursues all
available avenues of administrative review necessarily means that, if the party never
pursues all available avenues of administrative review, the person will never be able
to sue in federal court.” Ngo, 548 U.S. at 100 (italics original). Consequently,
Mobley-Weeks was required to properly exhaust the jail’s grievance process before
he “brought” this civil rights action, even though his claim is based on an apparently
isolated incident of excessive force. Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th
Cir. 2001) (“[S]ince the PLRA’s exhaustion requirements encompass excessive-useof-force claims, Higginbottom was required to exhaust his administrative remedies
before filing suit.”) (citations omitted); Maldonado v. Unnamed Defendant, 648 F.
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App’x 939, 951–52 (11th Cir. 2016) * (“To satisfy the exhaustion requirement, a
prisoner must complete the administrative process in accordance with the applicable
grievance procedures set by the prison. The prison’s requirements, rather than the
PLRA, dictate the level of detail necessary for proper exhaustion.”) (citing Jones v.
Bock, 549 U.S. 199, 218 (2007)).
The jail’s “Standard Operating Procedure DDS 914.06,” attached to the
motion to dismiss, shows (1) that the grievance process encompasses MobleyWeeks’s alleged use of excessive force, specifically, “[a]n inmate may register a
complaint regarding treatment [and] incidents” and (2) that the grievance “shall be
filed no later than thirty (30) calendar days from the date on which the basis for the
complaint occurred.” (Doc. 15, Exhibit 1 at 1, ¶V(A)(1) and (4)) Because the alleged
incident occurred on May 14, 2023, the deadline to file a grievance was June 13,
2023. See Johnson v. Meadows, 418 F.3d 1152, 1159 (11th Cir. 2005) (“Prisoners must
timely meet the [filing] deadlines or the good cause standard of Georgia’s
administrative grievance procedures before filing a federal claim. Therefore,
Johnson’s grievance, which he filed out-of-time and without good cause, is not
sufficient to exhaust his administrative remedies for purposes of the PLRA
exhaustion requirement.”). Exhibit 2 attached to the motion to dismiss shows that,
during the relevant thirty-day period, Mobley-Weeks filed seven “Inmate Requests”

“Unpublished opinions are not considered binding precedent, but they may be cited as
persuasive authority.” 11th Cir. Rule 36-2.
*

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–– limited to his desired removal from administrative confinement and his Kosher
diet –– but none addressed either a grievance or a complaint about the alleged use of
force, and staff responded to each request. Exhibit 3 shows that over the following
five months Mobley-Weeks filed eighteen more “Inmate Requests,” which were
addressed by staff. In October Mobley-Weeks filed several “Inmate Requests” about
how to file a civil rights action, which questions the staff both answered and
provided the requested materials, but the “Requests” never mention the use-of-force
incident. By failing to oppose the motion to dismiss, Mobley-Weeks has not
contested the exhibits attached to the motion, and the exhibits refute MobleyWeeks’s representation that his requests were “blatantly ignored.”
The motion to dismiss (Doc. 15) is GRANTED because Mobley-Weeks failed
to exhaust his administrative remedies before filing this action as required under
42 U.S.C. § 1997e(a). Because the dismissal is without regard to the merits of the
action, this dismissal is without prejudice. The clerk must enter a judgment against
Mobley-Weeks and close this case.
ORDERED in Tampa, Florida, on August 28, 2024.

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